United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3901

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for

* Southern District of Iowa.

Lilian Maswai, *

*

Defendant-Appellant. *

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Submitted: June 21, 2005

Filed: August 22, 2005

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Before MURPHY, BYE, and SMITH, Circuit Judges.

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MURPHY, Circuit Judge.

Lilian Maswai was indicted for making a false attestation on an employment

eligibility verification form, in violation of 18 U.S.C. § 1546(b)(3). The charge was

based on information furnished by her husband after his arrest for domestic assault,

and she moved to exclude the government's evidence under 8 U.S.C. § 1367, a

provision of the Immigration and Nationality Act (INA) which places restrictions on

the use of information about battered alien spouses. The motion was denied by the

district court, and Maswai entered a conditional plea of guilty. She now appeals the

denial of her motion. We affirm.
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Maswai is a native of Kenya who entered this country on February 23, 2001

and stayed beyond the time permitted under her visa. She married Albert Ngoytz, a

legal permanent resident living in West Des Moines, Iowa, in August 2002. It is not

contested that Ngoytz was abusive throughout their marriage. Police were called to

the couple's residence on December 8, 2002, and Maswai, who was pregnant at the

time, told the officers that Ngoytz had pushed her and grabbed her clothing during an

argument. They observed a scratch on the back of her neck and arrested Ngoytz for

domestic assault causing injury. While he was in jail on the charge, Ngoytz wrote

Senator Charles Grassley on December 23 to report that Maswai was illegally living

and working in the country.

The senator’s office referred the matter to immigration officials who opened

an investigation into Maswai’s status. They learned that her nonimmigrant visitor

status had expired on April 22, 2001, that her application for student status had been

denied on October 5, 2001, and that she started working for Wells Fargo Bank as a

loan processor on February 4, 2002. As part of her job application she had signed an

I-9 form and checked a box on it to indicate she was a citizen or national of the

United States. Subsequent analysis confirmed that it was her handwriting on the

employment form. The matter was later referred to the United States Attorney for

prosecution.

Maswai was arrested in late February 2003 and ordered detained pending

immigration proceedings. Shortly thereafter she filed a petition for permanent

resident status under 8 U.S.C. § 1154(a)(1), one of several provisions within the INA

concerned with battered immigrant spouses. Maswai was subsequently released on

bond. She divorced Ngoytz in November 2003.

On April 28, 2004, Maswai was indicted for violating 18 U.S.C. § 1546(b)(3)

by making a false attestation on an employment eligibility verification form, a form

which must be completed by all job applicants. See 8 U.S.C. § 1324A(b). Maswai
1

The Honorable Harold D. Vietor, United States District Judge for the Southern

District of Iowa.

2

The Honorable Ronald E. Longstaff, Chief Judge, United States District Court

for the Southern District of Iowa, presiding.

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was charged for marking on the I-9 form which she submitted to Wells Fargo that she

was a citizen or national of the United States. She moved to exclude the

government's evidence on the basis that it was inadmissible under 8 U.S.C. § 1367

because the source of the evidence was her abusive husband. 

The district court1

 denied the motion after a hearing. It concluded that

exclusion of evidence is an extraordinary remedy limited to the protection of

constitutional rights and that Maswai had not shown she was entitled to prevail on her

motion. Subsequently Maswai entered a conditional Alford plea that preserved her

right to appeal the denial of her motion. She was sentenced by the district court2

 to

one day, with credit for time served after her arrest. She now appeals, contending that

the district court erred in denying her motion. We review the district court's

interpretation of the statute de novo. Jessep v. Jacobsen Transp. Co., Inc., 350 F.3d

739, 742 (8th Cir. 2003). 

Maswai contends that the government’s evidence was discovered as the result

of her abusive husband’s letter to Senator Grassley and that it is therefore

inadmissible under 8 U.S.C. § 1367(a)(1). She acknowledges that the plain language

of the statute prohibits officials from using information furnished solely by a battering

spouse in making "determination[s] of admissibility or deportability of an alien under

the [INA]." 8 U.S.C. § 1367(a)(1)(A). She argues, however, that even though this

is a criminal prosecution rather than an immigration proceeding, the government’s

evidence should be excluded in order to uphold the congressional purpose in enacting

§ 1367. She says Congress enacted the provision in order to prevent abusive spouses

from using the threat of deportation as a means of coercing battered aliens. Because
3

Section 1367 was enacted prior to the transfer of immigration enforcement

functions from the Department of Justice to the Department of Homeland Security

and its Bureau of Immigration and Customs Enforcement (BICE). See Homeland

Security Act of 2002, Pub.L. No. 107-296, § 441, 116 Stat. 2135, 2178 (2002). In

consolidating existing powers within the new department, Congress transferred to its

secretary all related functions. See 6 U.S.C. § 551(d)(2).

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convictions for immigration related offenses can result in deportation, Maswai

contends that the government would be able to circumvent the protections of §

1367(a)(1) if it is permitted to prosecute battered aliens with evidence obtained from

an abusive spouse. See 8 U.S.C. § 1227(a)(3)(B)(iii) (aliens deportable for violation

of 18 U.S.C. § 1546). 

The government contends that the language of § 1367(a)(1) is clearly limited

to immigration proceedings under Title 8 which encompasses the INA. Prosecutions

for use of a false attestation under Title 18 are distinguishable from deportation

proceedings it argues, for they require proof of a criminal act beyond an alien’s

unlawful presence within the United States. The government also contends that

Maswai’s prosecution was not based solely on information obtained from her abusive

spouse, for it obtained evidence from independent sources during its investigation,

including the I-9 form submitted to Wells Fargo Bank and the expert testimony

confirming her handwriting on the form.

The INA regulates the immigration, naturalization, and exclusion of aliens.

Section 1367 is entitled "Penalties for disclosure of information" and was added to

the INA in 1996 to limit the use and disclosure of information regarding battered

aliens. 8 U.S.C. § 1367. Section 1367(a)(1) states that the Department of Justice3

may not make an "adverse determination of admissibility or deportability of an alien

under the [INA] using information furnished solely by" several categories of

batterers. 8 U.S.C. § 1367(a)(1)(A)-(E). An abused immigrant previously convicted
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of certain crimes may not benefit from the provision, see id. § 1251(a)(2), but Maswai

does not have any such convictions.

In this prosecution Maswai is charged with violation of a criminal statute, 18

U.S.C. § 1546(b)(3), based on her false attestation in an employment application, and

no issue of her admissibility or deportability is before the court. This case does not

call for any government official to make a determination under Title 8 about her

immigration status, and there is nothing in the language of 8 U.S.C. § 1367(a)(1) to

indicate that it should be applied to bar evidence in a criminal prosecution under 18

U.S.C. § 1546(b)(3). Instead the plain language of § 1367(a)(1)(A) prohibits the use

of information from the spouses of battered aliens to make determinations of

admissibility or deportability under Title 8. While the legislative intent to restrict the

use of information provided by batterers of aliens could have been extended to apply

to criminal prosecutions, Congress did not choose to draft the statute in that way. 

We find no ambiguity in the language of § 1367(a)(1). Our task in interpreting

legislation is to start with the plain meaning of its words, and "[o]nly if the statute is

ambiguous do we look to the legislative history to determine Congress's intent."

United States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999). Since the language of

§ 1367(a)(1) is clear and precise, we need not consult any legislative history but we

have nonetheless searched and have discovered none. We conclude that § 1367(a)(1)

does not authorize exclusion of the government's evidence in this prosecution, but we

leave open for another day the question of whether Maswai could benefit from the

statute's protections in any subsequent deportation proceeding.

Maswai also raises an argument for exclusion of the government's evidence

under another subsection of the statute. Section § 1367(a)(2) bars the Attorney

General or other agency personnel from using or disclosing information related to

battered aliens who have pending immigration petitions. 8 U.S.C. § 1367(a)(2).

Maswai apparently has a pending petition for permanent resident status, and a petition
4

Although the government also raised the absence of an exclusion remedy in

§ 1367(c) in connection with Maswai's claim under § 1367(a)(1), we did not address

it earlier because it was unnecessary and because § 1367(a)(1) prohibits the use of

information from batterers in the making of adverse determinations of admissibility

or deportability, in contrast to the emphasis on disclosure in other sections of the

statute and in its title.

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under 8 U.S.C. § 1154(a)(1)(B)(ii) is one of the types of applications for relief

specifically listed as relevant for purposes of § 1367(a)(2). Maswai contends that the

information obtained from her abusive husband was disclosed to the United States

Attorney in violation of § 1367(a)(2) and as part of an effort to circumvent

§ 1367(a)(1) by obtaining a conviction that could serve as an independent basis for

deportation.

The government responds that criminal prosecutions are a legitimate function

of the Department of Justice and that the disclosure and use of the information about

Maswai in this case is specifically permitted by the exceptions in § 1367(a)(2). It also

contends that exclusion of evidence is an extraordinary remedy not included in §

1367(c), the penalty section of the statute, and that there is no indication that

Congress intended to insulate abused immigrants from the consequences of their own

criminal conduct.

Maswai has not shown that § 1367(a)(2) was violated in her case. Disclosures

to the United States Attorney of information about battered aliens who have pending

immigration petitions are permitted under § 1367(a)(2) for "legitimate

Department...or agency purposes," such as enforcing 18 U.S.C. § 1546. Furthermore,

§ 1367(c) provides monetary and disciplinary penalties for willful use or disclosure

of information in violation of § 1367, but it does not provide for exclusion of

evidence.4

 Since there are statutes that do, see, e.g.,18 U.S.C. §§ 2511(4), 2515

(establishing a monetary penalty for unlawfully intercepting wire, oral, or electronic
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communications and providing separately for exclusion of evidence), omission of

such a remedy here may have been intentional.

We conclude that the district court did not err in denying Maswai's motion to

exclude the government's evidence under 8 U.S.C. § 1367(a), and we affirm the

judgment of the district court.

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